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First Fed. Sav. & Loan Ass'n v. Chapman





Appeal from the Circuit Court of La Salle County; the Hon. Alexander T. Bower and the Hon. William P. Denny, Judges, presiding.


Rehearing denied September 8, 1983.

This is a consolidated appeal from related mortgage foreclosure actions, wherein decrees of foreclosure were entered and sales held and approved. The defendants are James and Norma Thomas, William and Nancy Roberts, Clifford and Adela Crockett, and Michael and Linda Dunning. They were contract purchasers, under installment contracts for deed from Laurel Chapman, Jr., and they appeal from the denial of their post-judgment motion to vacate the foreclosure decrees and subsequent sales pursuant to those decrees. The plaintiff is First Federal Savings and Loan Association of Ottawa (hereinafter First Federal). Defendant Laurel Chapman, Jr., is not a party to this appeal. The defendants argue that the foreclosure decrees and subsequent sales should be set aside because of First Federal's failure to comply with the applicable law governing foreclosures.

The records in these cases indicate that the Thomases, Roberts, Crocketts, and Dunnings were purchasers, by installment contracts for deed, of homes from defendant Laurel Chapman, Jr. Chapman had initially purchased the homes through a mortgage loan from First Federal. On January 8 and 9, 1981, First Federal filed two separate verified mortgage complaints against Chapman and these defendants. Apparently as a response to the foreclosure actions against him, Chapman filed for bankruptcy on January 21, 1981.

In one circuit court action, 81 CH 7, in which the Roberts, Crocketts and Dunnings were named defendants, the Roberts and Crocketts filed unverified answers and affirmative defenses. The answers neither admitted nor denied the complaint, but demanded strict proof. The affirmative defenses asked for protection as to them, as contract purchasers, without stating any other facts or bases. These were filed on January 28, 1981. In the other action, 81 CH 6, the defendant Thomases filed a similar answer and affirmative defense on February 4, 1981. The Dunnings later appeared in 81 CH 7, but filed no responsive pleading.

On July 1, 1981, First Federal filed an amended complaint in 81 CH 7. Defendants therein responded with a "Motion to Intervene, Continue for Additional Pleadings, and Consolidation of the Captioned Cases." An additional 30 days for pleading was requested. On August 14, 1981, the court entered its order allowing intervention, denying consolidation, and ordering additional pleadings to be filed before August 28, with an answer or other responsive pleadings before September 11, 1981. A subsequent order of August 28 granted the defendants an additional 28 days within which to file responsive pleadings to the foreclosure complaint. A similar order was entered in 81 CH 6, the Thomases' suit, giving them an additional 28 days from August 28 within which to file responsive pleadings. Thereafter, on October 1, 1981, the defendants, in the two cases, filed a "Response to Complaint," wherein they requested additional time within which to answer the complaints by First Federal. The basis for this request was the fact that they had instituted an action in Federal court against Chapman and First Federal involving the properties and the foreclosure actions. First Federal responded to the defendants "Response" by filing a motion to strike the response. First Federal's motion to strike was allowed by the court in the two State court actions, with the court giving the defendants until October 21, 1981, to make answer to the foreclosure complaints.

The defendants, on October 21, 1981, filed their motions to strike and dismiss First Federal's complaints, pursuant to section 48 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 48, now Ill. Rev. Stat. 1981, ch. 110, par. 2-619). These motions to dismiss were denied by the court on November 18, 1981, with the defendants given 14 days within which to answer. No answer or other responsive pleadings were filed by the defendants, as ordered.

Almost two months later, still no answer or responsive pleading having been filed, First Federal sent notices to the attorneys of record for the defendants, advising them that First Federal would appear in the circuit court, on February 17 and 24, respectively in 81 CH 6 and 81 CH 7, and there move for entry of decrees for foreclosure and sale. The notices were sent one week prior to the scheduled hearing dates. First Federal did appear on the dates specified in the notices, and it moved, with supporting affidavits, for foreclosure decrees. The defendants did not appear in either case. The court on February 17 and 24, 1982, respectively, entered decrees of foreclosure on those properties. In its decrees the court specifically found that due notice had been given the defendants, through their attorneys. The court also found that the material allegations of the complaints were true and proven, and it ordered a public sale with required publication notice. The decree of foreclosure also provided, in pertinent part, that the associate judge charged with the sales could adjourn them, from time to time, in his discretion for good cause shown, providing notice of any continuance was given to all parties. The court's decree exempted any continued sale of the properties from further publication requirements.

Initially, the public sales were set for March 17, 1982, and for March 31, 1982, with due notice given defendants' attorneys. The requisite newspaper publication, once each week for three consecutive weeks, with the first publication not less than 20 days from the date of sale, was also given. Thereafter, by March 17 court order, the sales were continued until April 14 and 15. Orders for continuance were sent to the defendants' attorneys. Subsequent thereto, on April 5, 1982, the attorney for the defendants on this appeal filed his appearance on their behalf in the trial court. On April 14, First Federal again moved for a continuance of the sale dates, and the court ordered the sales to be held on June 14 and 15, 1982. Copies of the orders and a notice of the continuance dates were sent to attorneys of record for the defendants.

The defendants then filed, in both cases, another motion, entitled "Motion to Consolidate Cases, Vacate Foreclosure Judgments, or to Stay Proceedings." The defense attempted therein to convince the court to consolidate the foreclosure actions with another suit they had brought in State court, for damages against First Federal and Chapman. In addition to consolidation, they sought either a vacation of the foreclosure decrees or a stay of further proceedings as to them. This motion, which is before us pursuant to allowance of the defense motion to supplement the record on appeal, was denied by the trial court in its entirety on May 27, 1982.

The defense attempts to halt the sales did not cease, for on June 9, 1982, a "Motion to Vacate Order Continuing Foreclosure Sale and Decree of Foreclosure" was filed in both foreclosure actions. The motion alleged that the original decrees of foreclosure were improperly entered, because the defendants' original answers were never stricken and the court nevertheless entered a decree, based upon affidavit, contrary to the requirement of an evidentiary hearing when facts are controverted. The motion also challenged the notice given to the defendants of the continued sale, as insufficient. It also sought leave to file an amended answer. This motion was not called for hearing prior to the dates set for sale.

The foreclosure sales proceeded as scheduled on June 14 and 15, 1982. A report of sale was duly filed in each case, and the reports were approved and confirmed by the court. The defense followed with an additional motion to vacate, seeking vacation of the original foreclosure decrees and the orders approving the sales. These motions incorporated the previous motions to vacate, which had not been heard, and alleged the sales had been accomplished without the required statutory notice. These motions were denied. From the denial of these motions to vacate, the defendants appeal herein.

• 1 The defense, in seeking to reverse the foreclosure decrees entered in February 1982, argues that they were improperly entered since the defendants were entitled to a hearing on their answers and affirmative defenses. Reference is made to the defendants' initial answers and affirmative defenses, filed in January and February, 1981. As noted in the recitation of facts, these answers were unverified, without supporting affidavit, and neither admitted nor denied the allegations of First Federal's complaint. Such nondenials are not sufficient to controvert the factual allegations of plaintiff's foreclosure complaints. (American National Bank & Trust Co. v. Schultz (1977), 54 Ill. App.3d 488, 490, 369 N.E.2d 903.) As to the affirmative defense raised by each defendant, it amounted to nothing more than a statement that they had an interest in the properties, by virtue of the warranty deeds, and a request that such interest be protected. That they were contract purchasers is not a defense to the foreclosure action. These allegations of affirmative and equitable defense were insufficient to controvert any fact of consequence to the foreclosure action. As styled, the defenses were insufficient and irrelevant. Furthermore, it is apparent from the records that those initial answers were abandoned by the defendants. In 81 CH 7 First Federal filed an amended complaint subsequent to the filing of the defendants' answers to the original complaint. The defendants' response therein was to move for additional time within which to plead to the amended complaint. This motion was granted on August 14, 1981. The defendants, in both actions, were then given an additional 28 days within which to file an answer or other responsive pleadings. This order was entered on August 28, 1981, in both cases. The defense response, in both cases, was entitled "Response to Complaint." When this "Response" was stricken on plaintiff's motion, the defendants were given additional time to file answers. On October 21, 1981, the defendants filed motions to strike and dismiss the complaints of First Federal. The motions were again denied and the defendants ordered to answer within 14 days of November 18, 1981. No answer or other responsive pleading was made by them. It is clear from the procedural history, which we have set forth laboriously in the recitation of facts, that the brief and insufficient initial answers of the defendants were abandoned by them when proceeding with the various responsive motions. At no time in response to the court's orders to answer did the defendants assert any reliance on their original answers. They proceeded with other responsive pleadings and without reliance on the original responses, thereby abandoning their initial insufficient pleadings.

• 2 The record also indicates that the defendants were all given notice of First Federal's intent to proceed with hearing on the foreclosure complaints, yet none appeared to contest the same. The court proceeded on affidavits by First Federal to enter foreclosure decrees. This was proper, for where the factual allegations of a foreclosure complaint are not controverted by answer, a supportive affidavit setting forth the facts of the complaint is sufficient evidence and no further evidence is required. (Ill. Rev. Stat. 1981, ch. 95, par. 22b, now Ill. Rev. Stat. 1981, ch. 110, par. 15-201.) The record contradicts the defendants' suggestion that it was the court and First Federal who failed to follow the applicable procedure in obtaining the foreclosure decrees. The omissions, both relating to pleading and appearance, were those of the defendants and their attorneys. They were given repeated opportunities to ...

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